The Standing Committee on Professional Responsibility and Conduct of the State Bar of California (Standing Committee) recently published a proposed ethics opinion regarding attorney blogging. (See Formal Opinion Interim No. 12-2006). The opinion determines when an attorneys’ blog(s) may fall under the scope of the Rules of Professional Conduct (Rules) related to attorney advertising. The opinion presented four different types of blogs and commented on whether they violated the Rules.
Blogs Including Attorney Successes:
The first kind of blog could be regulated regardless of whether it appeared as part of the lawyer’s website or not. It did not include an invitation to retain the attorney but included specific representations regarding the quality of the attorney’s services. For example, the blog included statements such as, “I won another case last week. That makes 50 in a row, by my count. Once again, I was able to convince a jury there was reasonable doubt.” It also stated that the jury as “absolutely mesmerized by my closing argument.” The Standing Committee believed that these statements in a blog, no matter where the blog appeared, could be regulated and violated the Rules which prohibit communications that are false, deceptive, or which tend to confuse, deceive, or mislead the public.
Informational Blogs on Firm Website:
This blog was on the website of a law firm and included a series of articles written by one of the firm’s attorneys on topics that may interest the firm clients such as changes in tax law, information regarding wills versus trusts, etc. Each blog post concluded with the statement, “for more information, contact” the author of the particular blog. Though the Standing Committee did not seem to have any issue with the content, it did opine that the blog was a communication within the meaning of the Rules and was subject to regulation by the State Bar to the same extent as the law firm’s website.
Stand Alone Blogs:
The third type of blog was not a part of the attorney’s website. The blogs posted by the attorney included information of interest to potential clients. The blogs were intended to demonstrate the attorney’s knowledge of legal issues, enhance his reputation, and increase his business, but did not describe his practice or qualifications and contained no overt statements of his availability for professional employment. However, several of the attorney’s blogs stated that if the reader had questions, to contact him. The blogs also contained a hyperlink to the attorney’s professional web page. The Standing Committee opined that if it were not for the concluding admonition to the blog readers to contact the attorney, the blogs would not be considered “communications” subject to the Rules.
Non-Legal Blogs by Attorneys:
In this scenario, an attorney wrote a blog about jazz artists, performances and recordings. The blog was not part of the attorney’s professional website but did contain a link to the website in the by-line and the website contained a link to the blog. Because the subject matter of the blog was not associated with the attorney’s practice area, the by-line would not be considered an “invitation.” However, if the two were related, the by-line would be similar to “if you have questions, contact me.” The Standing Committee opined that an attorney may blog about topics unrelated to the legal field, provided he does not actively use the blog to solicit business as an attorney.
Thus, the California Standing Committee’s conclusions are summarized as follows:
- Blogging by an attorney is subject to the requirements and restrictions of the Rules of Professional Conduct relating to lawyer advertising if the blog expresses the attorney’s availability for professional employment directly through words of invitation or offer to provide legal services, or implicitly through its description of the type and character of legal services offered by the attorney, detailed descriptions of case results, or both.
- A blog that is part of an attorney’s or law firm’s professional website will be subject to the rules regulating attorney advertising to the same extent as the website of which it is a part.
- A stand-alone blog by an attorney that does not relate to the practice of law or otherwise express the attorney’s availability for professional employment will not become subject to the rules regulating attorney advertising simply because the blog contains a link to the attorney or law firm’s professional website. (Formal Opinion Interim No. 12-0006).
North Carolina does not currently have an opinion on attorney blogging; however, based on the NC Rules of Professional Conduct and prior ethics opinions, it is likely that the NC Ethics Committee would agree with the proposed California opinion.
Rule 7.2 governs attorney advertising through written, recorded, or electronic communication, including public media. This Rule clearly includes written blogs published on firm websites and most likely includes those that are not, if the attorney either discusses his services/accomplishments or invites a potential client to contact him regarding the subject of a legal blog. “Advertising involves an active quest for clients…” and “may entail the risk of practices that are misleading and overreaching.” Rule 7.2, Comment 1.
Rule 7.1 prohibits false or misleading communications about the lawyer or the lawyer’s services. A communication is false or misleading if it is likely to create an unjustified expectation about results the lawyer can achieve. See Rule 7.1(b). “This Rule governs all communications about a lawyer’s services, including advertising permitted by Rule 7.2.” Rule 7.1, Comment 1. “Truthful statements that are misleading are also prohibited by this Rule.” Rule 7.1, Comment 2.
Though there are no NC ethics opinions directly on point, there are many which address similar issues in attorney advertising. Some of these include 2009 FEO 16, 2012 FEO 8, 2010 FEO 11, 2005 FEO 14, and 2012 FEO 1. See opinions at www.ncbar.gov.
In order to avoid any issues with the State Bar, it is a good idea to ensure that any legal blog you post is compliant with the advertising rules, as there is a strong likelihood the State Bar would take the position that it is a communication it can regulate.